Stevens v. Corelogic, Inc.

          ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

          HON. CYNTHIA BASHANT UNITED STATE DISTRICT JUDGE

         Plaintiff real estate photographers bring this action against Defendant CoreLogic, Inc. alleging violation of the Digital Millennium Copyright Act, 17 U.S.C. § 1202. (ECF No. 34.) CoreLogic now moves for summary judgment. (ECF No. 153.) Plaintiffs oppose. (ECF No. 168.) The Court held a hearing on the motion on June 8, 2016. After a review of the parties’ briefing papers and the arguments presented at the hearing, the Court GRANTS CoreLogic’s motion for summary judgment.

         I. STATEMENT OF FACTS

         Defendant CoreLogic develops and provides software to Multiple Listing Services (MLSs). (Joint Statement of Undisputed Facts, ECF No. 188 (“JSUF”) ¶1.) Real estate agents join MLSs and use CoreLogic’s software platform to upload their real estate listings, including property descriptions and photographs. (JSUF ¶3.) The named Plaintiffs are professional photographers who took photographs of houses for sale and licensed the photographs to real estate agents to upload to an MLS. (JSUF ¶¶12-14.) Plaintiffs provided the photographs to the agents pursuant to a license from Plaintiffs to the agent, but retained the right as copyright holder over the photographs. (JSUF ¶¶47-48.)

         Generally, the named Plaintiffs do not upload the photographs to an MLS themselves. Instead, they give the photographs to real estate agents who do so. (JSUF ¶¶24-25, 36-37.) Real estate photographers, including both named Plaintiffs, understood that when they provided photographs to real estate agents, the real estate agent would then upload the photographs to MLSs. (JSUF ¶38.)

         MLSs generally require representations by the real estate agent that he or she has procured the rights to reproduce or display the photographs from the copyright holder. (JSUF ¶¶15-17.) CoreLogic similarly has written agreements with its MLS customers that state:

MLS Data is proprietary information owned by Customer and . . . [CoreLogic] claims neither rights regarding nor title to MLS Data provided by Customer and/or End Users. It is understood, however, that . . . [CoreLogic] shall have the right to use, copy, arrange, compile and display MLS Data as [i]t deems necessary to meet its obligations under this Agreement…

(JSUF ¶19.) Some photographers embed copyright management information (“CMI”) in metadata attached to their photographs. Metadata is embedded in an image file and can include the artist or copyright “tags.” (JSUF ¶¶ 31, 35.) Some digital cameras can be used to automatically create Exchangeable Image File Format (“EXIF”) metadata. Alternatively, photographers can add metadata with certain photo editing software that provides for IPTC and IPTC Extension metadata fields. (Dec. of Steven Vandel, ECF No. 175-25, ¶7.)

         Not all cameras are configured to include metadata, and not all photographs produced by the named Plaintiffs had CMI in its metadata. (Dep. of Plaintiff Vandell, attached as Exh. A to Declaration of Michael A. Feldman “Feldman Decl.” ECF No. 153-3, pg. 37; Dep. of Plaintiff Stevens, attached as Exh. C to Feldman Decl., ECF No. 153-5, pgs. 6-8.) The metadata is not visible in the image itself but can be accessed and viewed using computer programs that are capable of displaying the metadata. (Expert Report of Jeff Sedlik, Feldman Decl. Exh. L, ECF No. 153-14; Expert Report of Gerald Bybee, ECF No. 153-24 ¶33.)

         There are many points throughout the file handling process when metadata can be altered or completely deleted unintentionally from a photograph. (Expert Report of Gerald Bybee, ECF No. 153-24, ¶22.) Images uploaded to CoreLogic’s MLS platforms may be manipulated before or after uploading. Manipulations may include resizing, rotating, cropping and adjusting resolution of the image so it can be used in a preconfigured display layout on the web page. (Id. ¶38.) All of these manipulations could result in inadvertent removal of the embedded metadata. (Id. ¶36.) Embedded metadata can also be removed inadvertently by email programs, opening an image on an iPhone using iOS Safari, or pasting the image in some versions of MS Word.^[1](Id. ¶40.)

         Furthermore, most commonly-used image-processing libraries, including the StockImageDepot.com web site used by named Plaintiff Stevens, do not retain metadata when the image file is resized.^[2] (Decl. of Mark Seiden, ECF No. 153-26, ¶12c-d.)

         CoreLogic’s software copies any visible watermarks that appear on these real estate photographs and show the photographer’s name. (JSUF ¶34.) However, prior to late 2014/early 2015, CoreLogic’s platforms removed all EXIF metadata from the photographs uploaded to the MLS using CoreLogic software. (Expert Decl. of Chuck Hedrick, Feldman Decl. Exh. P, ECF No. 153-18 ¶¶15-23.) In late 2014/early 2015, CoreLogic rewrote the code so that EXIF metadata was preserved during download.^[3](Id.)

         As explained by expert Seiden, when building software, builders usually use existing sets of pre-built functionality-known as “libraries.” (Decl. of Mark Seiden, ECF No. 153-26 ¶¶31-32.) Most of these libraries do not retain EXIF metadata by default when downsampling an image. (Id. ¶35.)

         On February 28, 2016, a real estate agent, who wishes to remain anonymous, used editing software to add metadata (not CMI, just a test run) in the IPTC and IPTC Extension windows to a real estate photograph using Adobe Bridge. (Decl. of Jane Doe, ECF No. 175-21. ¶6.) After uploading the photograph to the MLS (using CoreLogic’s software), she saved the photograph to her computer. She then reopened the file using Adobe Photoshop and found that most of the test information in the metadata had been removed. (Id. at ¶7.)

         Plaintiffs provide no evidence that the absence of metadata led to actual copyright infringement, nor have the named Plaintiffs ever used metadata to track down copyright infringers. However, both named Plaintiffs state that when identifying metadata is removed or altered, it becomes more difficult to identify a real estate photograph as theirs. (Stevens Decl., ECF No. 175-30 ¶22; Vandel Decl., ECF No. 175-25 ¶24.)

         In 2010, CoreLogic launched its Partner InfoNet Program, a special program for sharing revenue with MLSs. (JSUF ¶42.) Through the Program, an MLS licenses its listing data (including, for some MLSs, photographs uploaded to MLSs) for use in a variety of new risk management products for mortgage lenders, services and capital markets. (JSUF ¶42.) The Partner InfoNet agreement states:

[MLS] warrants to CoreLogic that it owns or has valid license to permit use of the MLS data as described in this Agreement and that to the best of…[MLS’s] actual knowledge, the MLS Data will not violate the intellectual property rights of a third party.

         (JSUF ¶43.) CoreLogic requested and received an indemnity from the MLS with respect to the Partner InfoNet Program. (JSUF ¶46.)

         Neither Stevens nor Vandel ever gave CoreLogic permission to use his photographs on any Partner InfoNet products, including Real Quest or Real Quest Pro. (Decl. of Robert Stevens, ECF No. 175-30 ¶19; Decl. of Steven Vandel, ECF No. 175-25 ¶22.) Nonetheless, twenty-four of Vandel’s photographs were used by Real Quest Pro and at least one of Stevens’ photographs was used ...